{ "id": 8208412, "name": "CITY OF WINSTON-SALEM, Plaintiff v. DOUGLAS A. SLATE and wife, SHIRLEY SLATE, Defendants; CITY OF WINSTON-SALEM, Plaintiff v. GARY M. SLATE and wife, DENISE SLATE; DOUGLAS A. SLATE and wife, SHIRLEY SLATE; PAMELA S. KENNEDY and husband, RICK KENNEDY; and R. KENNETH BABB, Administrator, Defendants", "name_abbreviation": "City of Winston-Salem v. Slate", "decision_date": "2007-08-07", "docket_number": "No. COA06-1015; No. COA06-1161", "first_page": "33", "last_page": "44", "citations": [ { "type": "official", "cite": "185 N.C. App. 33" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "592 S.E.2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631118, 12631119 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/592/0555-02", "/se2d/592/0555-01" ] }, { "cite": "622 S.E.2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634550 ], "year": 2005, "pin_cites": [ { "page": "642" } ], "opinion_index": 0, "case_paths": [ "/se2d/622/0638-01" ] }, { "cite": "635 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636724, 12636725 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/635/0594-02", "/se2d/635/0594-01" ] }, { "cite": "630 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635930 ], "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/se2d/630/0037-01" ] }, { "cite": "592 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631124, 12631125 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/592/0558-02", "/se2d/592/0558-01" ] }, { "cite": "358 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631114, 12631115, 12631116, 12631117, 12631118, 12631119, 12631120, 12631125 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/592/0553-02", "/se2d/592/0554-03", "/se2d/592/0554-01", "/se2d/592/0554-02", "/se2d/592/0555-02", "/se2d/592/0555-01", "/se2d/592/0556-03", "/se2d/592/0558-01" ] }, { "cite": "586 S.E.2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "532", "parenthetical": "trial court did not abuse its discretion in refusing to hear defendants' motion to amend answer when motion was filed only two days prior to hearing" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 535", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957125 ], "year": 2003, "pin_cites": [ { "page": "537-38", "parenthetical": "trial court did not abuse its discretion in refusing to hear defendants' motion to amend answer when motion was filed only two days prior to hearing" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0535-01" ] }, { "cite": "404 S.E.2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 219", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556192 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0219-01" ] }, { "cite": "393 S.E.2d 303", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "305" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 551", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523969 ], "year": 1990, "pin_cites": [ { "page": "554-55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0551-01" ] }, { "cite": "569 S.E.2d 282", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511556, 1511205, 1511596, 1511634, 1511256 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0176-02", "/nc/356/0176-03", "/nc/356/0176-04", "/nc/356/0176-01", "/nc/356/0176-05" ] }, { "cite": "562 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "149 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "opinion_index": 0 }, { "cite": "2002 WL 372516", "category": "reporters:specialty_west", "reporter": "WL", "opinion_index": 0 }, { "cite": "288 S.E.2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "opinion_index": 0 }, { "cite": "304 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571017, 8570956, 8570989, 8571054, 8571153 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/304/0724-03", "/nc/304/0724-01", "/nc/304/0724-02", "/nc/304/0724-04", "/nc/304/0724-05" ] }, { "cite": "281 S.E.2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "674", "parenthetical": "\"The test of substantial unity of ownership appears, then, to be whether some one of the tenants in the land taken owns some quantity and quality of interest and estate in all of the land sought to be treated as a unified tract.\"" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 516", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522222 ], "year": 1981, "pin_cites": [ { "page": "528", "parenthetical": "\"The test of substantial unity of ownership appears, then, to be whether some one of the tenants in the land taken owns some quantity and quality of interest and estate in all of the land sought to be treated as a unified tract.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0516-01" ] }, { "cite": "122 S. Ct. 1070", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2002, "opinion_index": 0 }, { "cite": "151 L. Ed. 2d 972", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "534 U.S. 1130", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9248865, 9249148, 9249124, 9248996, 9249101, 9248978, 9248948, 9249052, 9249078, 9248918, 9249016, 9248890, 9249180 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/534/1130-01", "/us/534/1130-12", "/us/534/1130-11", "/us/534/1130-06", "/us/534/1130-10", "/us/534/1130-05", "/us/534/1130-04", "/us/534/1130-08", "/us/534/1130-09", "/us/534/1130-03", "/us/534/1130-07", "/us/534/1130-02", "/us/534/1130-13" ] }, { "cite": "549 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135695 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0671-01" ] }, { "cite": "531 S.E.2d 836", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "839" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 329", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11079720 ], "year": 2000, "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0329-01" ] }, { "cite": "249 S.E.2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "395" } ], "opinion_index": 0 }, { "cite": "296 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564418 ], "year": 1978, "pin_cites": [ { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0020-01" ] }, { "cite": "109 S.E.2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1959, "pin_cites": [ { "page": "224-25" }, { "page": "225", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "250 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623661 ], "weight": 2, "year": 1959, "pin_cites": [ { "page": "384" }, { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/250/0378-01" ] }, { "cite": "581 S.E.2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2003, "pin_cites": [ { "page": "773" }, { "page": "773" }, { "page": "773", "parenthetical": "addressing whether the condemned lots should be considered in unity with three other parcels with varying ownership" }, { "page": "773" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 403", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9187886 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "407" }, { "page": "407" }, { "page": "406-07" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0403-01" ] }, { "cite": "584 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491904, 491649, 491458, 491654, 491912, 491705, 491547, 491676, 491486 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0470-04", "/nc/357/0470-01", "/nc/357/0470-03", "/nc/357/0470-09", "/nc/357/0470-02", "/nc/357/0470-06", "/nc/357/0470-07", "/nc/357/0470-08", "/nc/357/0470-05" ] }, { "cite": "577 S.E.2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "156" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 549", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9191458 ], "pin_cites": [ { "page": "551" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0549-01" ] }, { "cite": "175 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "351", "parenthetical": "\"[W]hen the City undertook to exercise the power of eminent domain . . ., it was necessary that it both allege and prove compliance with statutory procedural requirements.\"" } ], "opinion_index": 0 }, { "cite": "8 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554490 ], "year": 1970, "pin_cites": [ { "page": "653", "parenthetical": "\"[W]hen the City undertook to exercise the power of eminent domain . . ., it was necessary that it both allege and prove compliance with statutory procedural requirements.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/8/0649-01" ] }, { "cite": "178 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "350", "parenthetical": "\"[I]n order to invoke [the power of eminent domain] the [petitioner] must affirmatively allege compliance with the statutory requirements.\"" } ], "opinion_index": 0 }, { "cite": "277 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567108 ], "year": 1971, "pin_cites": [ { "page": "643", "parenthetical": "\"[I]n order to invoke [the power of eminent domain] the [petitioner] must affirmatively allege compliance with the statutory requirements.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0634-01" ] }, { "cite": "317 S.E.2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 307", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4684712, 4684624, 4683856, 4687030, 4683192 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0307-04", "/nc/311/0307-05", "/nc/311/0307-01", "/nc/311/0307-03", "/nc/311/0307-02" ] }, { "cite": "312 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "250" }, { "page": "250", "parenthetical": "noting, in statutorily similar context of condemnation by Department of Transportation, that \"[o]ne issue raised by the pleadings is the area affected by the taking\"" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 148", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525855 ], "weight": 2, "pin_cites": [ { "page": "153" }, { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0148-01" ] }, { "cite": "174 N.C. App. 764", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353226 ], "year": 2005, "pin_cites": [ { "page": "769" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0764-01" ] }, { "cite": "360 N.C. 575", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3792832, 3797154, 3794563, 3787078, 3793960, 3795539, 3793977 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0575-07", "/nc/360/0575-03", "/nc/360/0575-01", "/nc/360/0575-06", "/nc/360/0575-05", "/nc/360/0575-04", "/nc/360/0575-02" ] }, { "cite": "177 N.C. App. 753", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8302503 ], "pin_cites": [ { "page": "755" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0753-01" ] }, { "cite": "471 S.E.2d 63", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798804 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0509-01" ] }, { "cite": "463 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "279" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 566", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916784 ], "year": 1995, "pin_cites": [ { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0566-01" ] }, { "cite": "403 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "294" } ], "opinion_index": 0 }, { "cite": "328 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538925 ], "year": 1991, "pin_cites": [ { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0651-01" ] }, { "cite": "580 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 165", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491428, 491847, 491722, 491755, 491435, 491796, 491543, 491513 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0165-01", "/nc/357/0165-07", "/nc/357/0165-03", "/nc/357/0165-04", "/nc/357/0165-05", "/nc/357/0165-02", "/nc/357/0165-08", "/nc/357/0165-06" ] }, { "cite": "572 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "834", "parenthetical": "trial court's determination under N.C. Gen. Stat. \u00a7 40A-47 \"affect[ed] a substantial right\"" }, { "page": "834", "parenthetical": "trial court accepted expert testimony" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251289 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "591", "parenthetical": "trial court's determination under N.C. Gen. Stat. \u00a7 40A-47 \"affect[ed] a substantial right\"" }, { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0589-01" ] }, { "cite": "444 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "253" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12129791 ], "year": 1994, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0377-01" ] }, { "cite": "517 S.E.2d 155", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "158" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 91", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11143061 ], "year": 1999, "pin_cites": [ { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0091-01" ] } ], "analysis": { "cardinality": 1092, "char_count": 28559, "ocr_confidence": 0.747, "pagerank": { "raw": 9.230518850907464e-08, "percentile": 0.510468950120258 }, "sha256": "7e516d06ff020a42a910fd659302ea0feef2423c0c5617357c5181ceca01de66", "simhash": "1:8b64c5a0767f1eda", "word_count": 4785 }, "last_updated": "2023-07-14T20:04:26.584781+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge WYNN concur." ], "parties": [ "CITY OF WINSTON-SALEM, Plaintiff v. DOUGLAS A. SLATE and wife, SHIRLEY SLATE, Defendants CITY OF WINSTON-SALEM, Plaintiff v. GARY M. SLATE and wife, DENISE SLATE; DOUGLAS A. SLATE and wife, SHIRLEY SLATE; PAMELA S. KENNEDY and husband, RICK KENNEDY; and R. KENNETH BABB, Administrator, Defendants" ], "opinions": [ { "text": "GEER, Judge.\nThe City of Winston-Salem, North Carolina filed two eminent domain actions and declarations of taking in which the City sought to take a permanent sewer easement and a temporary construction easement running across real property owned by defendants in COA06-1015 and COA06-1161. As the issues presented in the appeals from the trial court\u2019s order in each eminent domain action involve common questions of law, we have consolidated the appeals for purposes of decision.\nFollowing the filing of the City\u2019s complaints, defendants were entitled to an evidentiary hearing pursuant to N.C. Gen. Stat. \u00a7 40A-47 (2005) on all issues placed in controversy by the pleadings other than the amount of just compensation. Because the pleadings in this case presented a dispute as to the identity of the property affected by the City\u2019s taking, defendants were entitled to an evidentiary hearing on that issue. We, therefore, hold that the trial court erred by declining to conduct an evidentiary hearing and reverse and remand for further proceedings in accordance with this opinion.\nFacts\nThese actions primarily revolve around an approximately 75 acre parcel of farmland inherited by all of the Slate children, as well as a smaller adjoining parcel solely owned by defendants Douglas and Shirley Slate. The City, intending to construct a sewer line, filed two complaints in Forsyth County Superior Court on 2 March 2004, declaring eminent domain takings of a temporary construction easement and a permanent sewer line easement across both a portion of the inherited farmland and the parcel solely owned by Douglas and Shirley Slate.\nThe first complaint (04 CVS 1426 in the trial court and COA06-1161 on appeal) was directed at the solely-owned parcel and named only Douglas and Shirley Slate as defendants (the \u201cDouglas Slate action\u201d). The second complaint (04 CVS 1430 in the trial court and COA06-1015 on appeal) related to the farmland and named as defendants Douglas and Shirley Slate, Gary and Denice Slate, Rick and Pamela Slate Kennedy, Vicky and Wilson Newsome, Beverly and Phil Shelnut, Andrew and Louise Slate, Jeffery and Becky Slate, John and Tammy Slate, Rex and Gayle Slate, and Administrator R. Kenneth Babb (the \u201cSlate Family action\u201d). Defendants filed answers to the City\u2019s complaints on 13 July 2004.\nOn 22 September 2005, defendants\u2019 counsel, Max D. Ballinger, moved to withdraw as counsel for certain defendants in the Slate Family action. The motion claimed that, prior to the filing of the City\u2019s complaints, defendants \u201chad reached an agreement\u201d as to how they would divide the approximately 75 acres they had inherited from their parents\u2019 estate. The motion explained that, under this agreement (the \u201cFamily Settlement\u201d), only the property allocated to Gary and Denise Slate, Douglas and Shirley Slate, and Rick and Pamela Slate Kennedy would be affected by the City\u2019s taking. Mr. Ballinger asserted that he needed to withdraw as attorney for the remaining defendants in the Slate Family action because they no longer had any interest in the action, and continued representation of both the interested defendants and the purportedly disinterested defendants created a conflict of interest. At this point, no deeds had yet been recorded reflecting the purported property distribution resulting from the Family Settlement.\nThe following day, defendants filed a second motion in the Slate Family action, requesting three separate jury determinations as to the damages caused by the City\u2019s taking with respect to Gary and Denise Slate, Douglas and Shirley Slate, and Rick and Pamela Slate Kennedy. According to the motion, because Gary and Denise Slate and Douglas and Shirley Slate already owned property adjoining the property distributed to them in the Family Settlement, the City\u2019s taking should be valued for each of them separately based upon the effect of the taking on the total .property owned by each of them \u2014 i.e., their portion of the farmland plus any adjoining property.\nOn 10 October 2005, in response to a motion by defendants Vicki and Wilson Newsome, Jill and Phil Shelnut, Andrew and Louise Slate, John and Tammy Slate, and Rex and Gayle Slate, Judge Ben F. Tennille entered an order dismissing those defendants from the Slate Family action on the grounds that each of those defendants had, under the Family Settlement, \u201creleased and waived any and all rights to any sums received\u201d in the eminent domain proceedings. As a result of that order, only Gary and Denise Slate, Douglas and Shirley Slate, and Rick and Pamela Slate Kennedy remained as defendants in the Slate Family action.\nIn a subsequent order filed on 9 November 2005, Judge Tennille concluded that Mr. Ballinger\u2019s continuing representation of the remaining Slate family defendants did not pose a conflict of interest. With respect to defendants\u2019 motion to submit three issues to the jury, Judge Tennille \u201cdeferred] that issue to the trial Court.\u201d\nThe City, pursuant to N.C. Gen. Stat. \u00a7 40A-47, timely calendared a 27 February 2006 hearing to determine all issues other than damages in both the Slate Family action and the Douglas Slate action. Four days before the scheduled hearing date, on 23 February 2006, defendants in the Slate Family action filed a motion to amend their answer, as well as a notice of hearing asking that the motion to amend be heard on 27 February 2006.\nAt the opening of the hearing, which in fact began on 28 February 2006, the trial court inquired of counsel whether \u201cthis hearing [is] one to be determined on the pleadingsf.]\u201d The City argued that the present case should be resolved on the pleadings because the admissions and denials in defendants\u2019 answers failed to give rise to any disputed issues. The trial court then declined to conduct an evidentiary hearing and sustained the City\u2019s objections to defendants\u2019 attempted submission of various exhibits, affidavits, and testimony. In addition, after concluding that the motion to amend had not been filed the required number of days before the hearing, the trial court declined to rule on the motion at that hearing.\nOn 13 March 2006, the trial court entered orders in both actions, concluding, among other things, that the City had accurately described the property to be taken in its complaints, that the City and defendants were the only parties with any interest in the land taken, and that the only remaining issue to be determined was that of just compensation. With respect to the Slate Family action, the trial court also concluded that the property at issue had not been subdivided among defendants before the date of the taking and that Judge Tennille\u2019s order dismissing the other Slate Family action defendants had not affected their ownership of the property, but, rather, had merely released them from receiving any portion of the just compensation. Finally, the trial court, denied defendants\u2019 motion in the Slate Family action to submit separate issues to the jury. Defendants have appealed to this Court.\nDiscussion\nWe first address the interlocutory nature of defendants\u2019 appeals. Because the trial court\u2019s order left the issue of just compensation still to be resolved, it is an interlocutory order. See Concrete Mach. Co. v. City of Hickory, 134 N.C. App. 91, 96, 517 S.E.2d 155, 158 (1999). Generally, there is no right to appeal from an interlocutory order. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). Nevertheless, this Court has held on multiple occasions that orders under N.C. Gen. Stat. \u00a7 40A-47 are immediately appealable as affecting a substantial right. See, e.g., Piedmont Triad Reg\u2019l Water Auth. v. Unger, 154 N.C. App. 589, 591, 572 S.E.2d 832, 834 (2002) (trial court\u2019s determination under N.C. Gen. Stat. \u00a7 40A-47 \u201caffect[ed] a substantial right\u201d), disc. review denied, 357 N.C. 165, 580 S.E.2d 695 (2003). Defendants\u2019 appeals are, therefore, properly before the Court.\nI\nWe turn first to defendants\u2019 argument in the Slate Family action that the trial court erred in declining to rule on their motion to amend their answer. The trial court concluded that the motion had not been filed a sufficient number of days prior to the 28 February 2006 hearing to provide the required notice to the City.\nRule 6(d) of the Rules of Civil Procedure specifies: \u201cA written motion . . . and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing . . . .\u201d In computing any period of time under the Rules of Civil Procedure, \u201c[w]hen the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation.\u201d N.C.R. Civ. P. 6(a). On Thursday, 23 February 2006, defense counsel served defendants\u2019 motion to amend their answer on the City and noticed a hearing for the 27 February 2006 court session. Under Rule 6(a), the City had only three days notice of the motion to amend as of Tuesday, 28 February 2006, the actual day of the hearing. The trial court thus properly concluded that defendants had failed to file their motion in a timely fashion prior to the hearing at which they wished to be heard and did not err in declining to consider their motion. See FNB Southeast v. Lane, 160 N.C. App. 535, 537-38, 586 S.E.2d 530, 532 (2003) (trial court did not abuse its discretion in refusing to hear defendants\u2019 motion to amend answer when motion was filed only two days prior to hearing), disc. review denied, 358 N.C. 153, 592 S.E.2d 558 (2004).\nDefendants nevertheless argue that the trial court in fact surreptitiously denied their motion by stating in its written orders that \u201c[o]ther than those issues ruled on [in the order], all issues or claims alleged by the parties in their respective pleadings, or otherwise, have been resolved or are deemed to have been waived by the parties.\u201d We do not agree with defendants\u2019 interpretation of the trial court\u2019s order. At the hearing, the trial court specifically stated that it was \u201cnot allowing or denying the amendment,\u201d that the motion to amend was simply \u201cnot before the Court,\u201d and that the trial court\u2019s decision not to rule on the motion did not \u201cmean that some judge isn\u2019t going to hear the motion to amend at a later date once it is filed and properly calendared.\u201d\nConsequently, the appealed orders do not preclude defendants in the Slate Family action from having their motion to amend heard on another hearing date. We express no opinion on the merits of the motion, including the City\u2019s contention that defendants delayed too long in filing the motion to amend.\nII\nWe turn next to defendants\u2019 argument that N.C. Gen. Stat. \u00a7 40A-47 required the trial court to resolve not merely any matters raised by the pleadings, but, rather, \u201call matters at issue\u201d between the parties. (Emphasis omitted.) Notably, as defendants admit in their brief, \u201cthey have no case to support [their] contention.\u201d See N.C.R. App. P. 28(b)(6) (\u201cAssignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d (emphasis added)).\nN.C. Gen. Stat. \u00a7 40A-47 provides:\nThe judge, upon motion and 10 days\u2019 notice by either the con-demnor or the owner, shall, either in or out of session, hear and determine any and all issues raised by the pleadings other than the issue of compensation, including, but not limited to, the con-demnor\u2019s authority to take, questions of necessary and proper parties, title to the land, interest taken, and area taken.\n(Emphasis added.) It is well settled that the meaning of any statute is controlled by the intent of the legislature and that this intent is first ascertained from the plain language of the statute. Elec. Supply Co. of Durham, Inc. v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991). We conclude that the plain language of N.C. Gen. Stat. \u00a7 40A-47 requires the trial court to resolve only issues raised by the pleadings, and, as a result, we reject this argument.\nWe turn now to defendants\u2019 argument that the trial court erred by refusing to conduct an evidentiary hearing. This Court has previously characterized hearings under N.C. Gen. Stat. \u00a7 40A-47 as \u201cevidentiary,\u201d Bd. of Educ. of Hickory Admin. Sch. Unit v. Seagle, 120 N.C. App. 566, 568, 463 S.E.2d 277, 279 (1995), disc. review improvidently allowed, 343 N.C. 509, 471 S.E.2d 63 (1996), and has routinely upheld decisions under N.C. Gen. Stat. \u00a7 40A-47 in which the trial court admitted evidence during the hearing, see, e.g., Frances L. Austin Family Ltd. P\u2019ship v. City of High Point, 177 N.C. App. 753, 755, 630 S.E.2d 37, 39 (trial court \u201creviewed depositions, pleadings, exhibits, and other materials\u201d), disc. review denied, 360 N.C. 575, 635 S.E.2d 594 (2006); Unger, 154 N.C. App. at 591, 572 S.E.2d at 834 (trial court accepted expert testimony).\nIn the present case, the trial court refused to admit any of defendants\u2019 evidence on the ground that, under N.C. Gen. Stat. \u00a7 40A-47, no issues were \u201craised by the pleadings.\u201d In challenging this decision, defendants must demonstrate both that there were issues raised by the pleadings and that the failure to admit their evidence to resolve those issues was prejudicial. Blankenship v. Town & Country Ford, Inc., 174 N.C. App. 764, 769, 622 S.E.2d 638, 642 (2005). See also N.C.R. Civ. P. 61 (\u201cNo error in either the admission or exclusion of evidence ... is ground for . . . disturbing a judgment or order, unless refusal to take such action amounts to the denial of a substantial right.\u201d).\nOn appeal, defendants point to three issues that they claim were raised by the pleadings. First, defendants in the Slate Family action argue that the pleadings created a dispute over the ownership of the areas being taken by the City. A complaint exercising eminent domain by taking property must include \u201c[t]he names and addresses of those persons who the condemnor is informed and believes may be or, claim to be, owners of the property . . . .\u201d N.C. Gen. Stat. \u00a7 40A-41(4) (2005). Additionally, N.C. Gen. Stat. \u00a7 40A-47 specifically provides that, if raised by the pleadings, the \u201ctitle to the land\u201d is among the issues the trial court is to determine at the hearing. See also State v. Forehand, 67 N.C. App. 148, 153, 312 S.E.2d 247, 250 (\u201cA determination of ownership of the area affected is a prerequisite to a determination of just compensation for the area taken.\u201d (emphasis added)), disc. review denied, 311 N.C. 307, 317 S.E.2d 904 (1984).\nThe pleadings in the Slate Family action, however, fail to give rise to a dispute as to the ownership of the property. The City\u2019s complaint in the Slate Family action states: \u201cThe names and addresses of those persons whom the Plaintiff is informed and believes may be or claim to be the owners of the property, so far as the same can be ascertained, are set forth in Exhibit B. Said persons are under no legal disability except as stated in Exhibit B, attached hereto and made a part hereof.\u201d Defendants\u2019 answer to that allegation states simply: \u201cAdmitted.\u201d Defendants then further state that \u201c[t]heir interests in the property at issue are that they are heirs of the Ralph and Dora Slate estate, and are the beneficiaries of interests in the property at issue.\u201d Accordingly, based on the pleadings, no issue exists as to the ownership of the property being taken by the City.\nSecond, defendants in both actions argue that the pleadings create a dispute as to the \u201carea taken.\u201d The City\u2019s complaints in the Slate Family action and the Douglas Slate action both state that \u201cthe area taken\u201d is \u201cdescribed in said Exhibit A, attached hereto and made a part hereof.\u201d Defendants\u2019 answer in each case states in response: \u201cIt is admitted that Exhibit A accurately describes the area taken and the alleged interest taken.\u201d Again, based on the pleadings, no dispute exists as to the \u201carea taken.\u201d\nDefendants nonetheless argue that the plats filed by the City\u2014 long after the filing of the pleadings \u2014 contain errors and that those errors create a dispute as to the areas taken. According to defendants, the trial court, therefore, erred by excluding the testimony of their land surveyor, who would testify as to the errors on the City\u2019s plats. N.C. Gen. Stat. \u00a7 40A-45(c) (2005) governs the filing of plats:\nThe condemnor, within 90 days from the receipt of the answer shall file in the cause a plat of the property taken and such additional area as may be necessary to properly determine the compensation, and a copy thereof shall be mailed to the parties or their attorney; provided, however, the condemnor shall not be required to file a map or plat in less than six months from the date of the filing of the complaint.\nAs plats are not to be filed until after the pleadings are closed and, in any event, no earlier than six months after the initiation of the action, any dispute pertaining to them was not properly before the trial court in a hearing under N.C. Gen. Stat. \u00a7 40A-47.\nFinally, defendants in both actions contend that the pleadings created a dispute as to whether the City\u2019s complaints accurately described the land \u201caffected\u201d by the taking. A complaint exercising eminent domain by taking property must describe any \u201cland affected by the taking.\u201d N.C. Gen. Stat. \u00a7 40A-41(2). Defendants\u2019 answers both denied that the City had accurately described the lands affected, and, accordingly, this issue was raised by the pleadings. See also Forehand, 67 N.C. App. at 153, 312 S.E.2d at 250 (noting, in statutorily similar context of condemnation by Department of Transportation, that \u201c[o]ne issue raised by the pleadings is the area affected by the taking\u201d).\nThe City, however, contends that the bare denial in defendants\u2019 answer was not enough to give rise to a dispute. They argue that defendants were required to set forth their contentions as to the identity of the property affected in order to preserve the issue for hearing. The City has, however, cited no authority for this proposition. Moreover, under N.C. Gen. Stat. \u00a7 40A-41(2), it is the public condem-nor \u2014 not the landowner \u2014 that must carry the burden of producing a \u201cdescription of the entire tract or tracts of land affected by the taking sufficient for the identification thereof[.]\u201d See also Redevelopment Comm\u2019n of City of Washington, N.C. v. Grimes, 277 N.C. 634, 643, 178 S.E.2d 345, 350 (1971) (\u201c[I]n order to invoke [the power of eminent domain] the [petitioner] must affirmatively allege compliance with the statutory requirements.\u201d); City of Charlotte v. McNeely, 8 N.C. App. 649, 653, 175 S.E.2d 348, 351 (1970) (\u201c[W]hen the City undertook to exercise the power of eminent domain . . ., it was necessary that it both allege and prove compliance with statutory procedural requirements.\u201d). We, therefore, hold that defendants\u2019 denial was sufficient to raise the issue in the pleadings. Accordingly, defendants were entitled to present evidence on the issue of the affected property.\nWith respect to whether defendants were harmed by this error, defendants argue that they would have offered evidence indicating that other tracts were used in \u201cunity\u201d with the properties over which the City\u2019s easements crossed and that those tracts will, as a result, also be \u201caffected\u201d by the City\u2019s takings. We note as a preliminary matter that the City, in support of its contention that defendants were not harmed by the trial court\u2019s error, has attached various documents from outside the record as appendices to its briefs before this Court. We cannot, however, consider any of those items as they are not part of the record on appeal and, therefore, may not be included in an appendix under N.C.R. App. P. 28(d). See also Woodburn v. N.C. State Univ., 156 N.C. App. 549, 551, 577 S.E.2d 154, 156 (striking appendix under N.C.R. App. P. 28 because it was not part of record), disc. review denied, 357 N.C. 470, 584 S.E.2d 296 (2003).\nN.C. Gen. Stat. \u00a7 40A-67 (2005) specifies that \u201c[f]or the purpose of determining compensation under this Article, all contiguous tracts of land that are in the same ownership and are being used as an integrated economic unit shall be treated as if the combined tracts constitute a single tract.\u201d This Court has explained: \u201cThe distinction between whether the condemned lots are part of a unified parcel of land or instead independent parcels is significant because, if treated as a unified parcel, the damages from the condemnation are calculated by the effect on the property as a whole and not based solely on the value of the condemned lots.\u201d Dep\u2019t of Transp. v. Roymac P\u2019ship, 158 N.C. App. 403, 407, 581 S.E.2d 770, 773 (2003), appeal dismissed, 358 N.C. 153, 592 S.E.2d 555 (2004).\nIn determining whether condemned land is part of a unified tract, North Carolina courts consider three factors: (1) physical unity, (2) unity of ownership, and (3) unity of use. Barnes v. N.C. State Highway Comm\u2019n, 250 N.C. 378, 384, 109 S.E.2d 219, 224-25 (1959). Although all three factors need not be present, some unity of ownership must be established when separate parcels of land are involved. Bd. of Transp. v. Martin, 296 N.C. 20, 26, 249 S.E.2d 390, 395 (1978).\nIn the present case, there is no dispute that the parcels involved all adjoin and, therefore, satisfy the physical unity requirement. See Roymac P\u2019ship, 158 N.C. App. at 407, 581 S.E.2d at 773 (\u201cPhysical unity generally requires that \u2018parcels of land must be contiguous to constitute a single tract of land.\u2019 \u201d (quoting Dep\u2019t of Transp. v. Rowe, 138 N.C. App. 329, 333, 531 S.E.2d 836, 839 (2000), rev\u2019d on other grounds, 353 N.C. 671, 549 S.E.2d 203 (2001), cert. denied, 534 U.S. 1130, 151 L. Ed. 2d 972, 122 S. Ct. 1070 (2002))). The City does not dispute this factor.\nAs to the next factor, the City contends there is no unity of ownership because: \u201cThough, as of the date of taking, they each owned a co-tenants [sic] share in the Slate Heirs Property, they did not each own an interest in the homes of their respective co-Appellants.\u201d The City\u2019s argument is, how\u00e9ver, contrary to Barnes, which specifically addressed tenants in common. In Barnes, the Supreme Court held:\nThe parcels claimed as a single tract must be owned by the same party or parties. It is not a requisite for unity of ownership that a party have the same quantity or quality of interest or estate in all parts of the tract. But where there are tenants in common, one or more of the tenants must own some interest and estate in the entire tract.\n250 N.C. at 384, 109 S.E.2d at 225 (emphasis added). See also City of Winston-Salem v. Tickle, 53 N.C. App. 516, 528, 281 S.E.2d 667, 674 (1981) (\u201cThe test of substantial unity of ownership appears, then, to be whether some one of the tenants in the land taken owns some quantity and quality of interest and estate in all of the land sought to be treated as a unified tract.\u201d), disc. review denied, 304 N.C. 724, 288 S.E.2d 808 (1982).\nDouglas and Shirley Slate seek to have the property involved in the Douglas Slate action treated as a single tract with the farmland that is the subject of the Slate Family action. Since they are tenants in common as to the farmland, they can thus present evidence of unity of ownership with respect to their tract and the farmland. Likewise, Gary and Denise Slate are sole owners of property that similarly adjoins the farm and have an ownership interest with respect to the farmland as tenants in common. See id. (\u201c[T]he significant factor is that the party who owns an interest and estate in the parcel he seeks to include in the whole for purposes of computing damages must also own an interest and estate in the tract taken, although the two interests and estates need not be of the same quality or quantity.\u201d).\nThe question before this Court is not whether defendants will in fact be able to prove unity of ownership or which tracts, if any, should be treated as an integrated economic unit. The question is whether the trial court\u2019s failure to conduct an evidentiary hearing was harmless. Based on the possibility that defendants may be able to show a unity of ownership as to some of the additional tracts, we cannot determine that the trial court\u2019s error was harmless. See Roymac P\u2019ship, 158 N.C. App. at 406-07, 581 S.E.2d at 773 (addressing whether the condemned lots should be considered in unity with three other parcels with varying ownership).\nFinally, \u201c[u]nity of use is determined by whether the various tracts of land are being used as an integrated economic unit.\u201d Id. at 408, 581 S.E.2d at 773. Defendants\u2019 offer of proof \u2014 included in the record \u2014 indicates that defendants would have offered evidence that they used their property \u201cas a single economic unit\u201d in conjunction with one another. Depending on the evidence actually adduced at the hearing, this may be sufficient to establish unity of use.\nThe City nevertheless argues, citing Wachovia Bank of N.C. v. Weeks, 2002 N.C. App. LEXIS 170, 2002 WL 372516, 149 N.C. App. 234, 562 S.E.2d 304 (Mar. 5) (unpublished), cert, denied, 356 N.C. 176, 569 S.E.2d 282 (2002), that there can be no unity of use unless the owner has exclusive use of the entire tract alleged to be affected by the taking. As an initial matter, we note that, in violation of N.C.R. App. P. 30(e)(3), the City has failed to acknowledge that Weeks is unpublished and failed to attach a copy of the opinion to either of its briefs. In any event, Weeks does not address \u201cunity of use\u201d for condemnation purposes, but, rather, considers exclusivity of use only in the context of adverse possession. Weeks is inapposite.\nAs the City has not made any other argument regarding unity of use, we hold that defendants have made a sufficient showing to warrant an evidentiary hearing on the issue of the property affected. We express no opinions, however, on whether defendants\u2019 evidence is sufficient under N.C. Gen. Stat. \u00a7 40A-67 or what tracts of land, if any, should be treated as an integrated economic unit.\nAccordingly, we reverse and remand for an evidentiary hearing limited to the issue of the property affected by the taking. Given our resolution of this appeal, we need not address defendants\u2019 remaining arguments. Swilling v. Swilling, 99 N.C. App. 551, 554-55, 393 S.E.2d 303, 305 (1990), aff\u2019d in part and rev\u2019d in part on other grounds, 329 N.C. 219, 404 S.E.2d 837 (1991).\nReversed and remanded.\nChief Judge MARTIN and Judge WYNN concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Winston-Salem City Attorney Ron Seeber, by Assistant City Attorney Anthony J. Baker, for plaintiff-appellee.", "Max D. Ballinger for defendants-appellants." ], "corrections": "", "head_matter": "CITY OF WINSTON-SALEM, Plaintiff v. DOUGLAS A. SLATE and wife, SHIRLEY SLATE, Defendants CITY OF WINSTON-SALEM, Plaintiff v. GARY M. SLATE and wife, DENISE SLATE; DOUGLAS A. SLATE and wife, SHIRLEY SLATE; PAMELA S. KENNEDY and husband, RICK KENNEDY; and R. KENNETH BABB, Administrator, Defendants\nNo. COA06-1015\nNo. COA06-1161\n(Filed 7 August 2007)\n1. Appeal and Error\u2014 appealability \u2014 interlocutory orders\u2014 condemnation \u2014 substantial right\nOrders under N.C.G.S. \u00a7 40A-47 (condemnation) are immediately appealable as affecting a substantial right even when interlocutory.\n2. Pleadings\u2014 motion to amend answer \u2014 no ruling\nThere was no error in an eminent domain action where defendants argued that the trial court erred by declining to rule on their motion to amend their answer. The trial court properly concluded that defendants had failed to file their motion in a timely fashion; moreover, the court\u2019s orders do not preclude defendants from having their motion heard on another date.\n3. Eminent Domain\u2014 hearing \u2014 matters raised by pleadings only\nThe plain language of N.C.G.S. \u00a7 40A-47 (condemnation) requires that the trial court resolve only issues raised by the pleadings, not all matters at issue between the parties as the defendants here contended.\n4. Eminent Domain\u2014 refusal to conduct evidentiary hearing \u2014 issues\nThe trial court erred by refusing to conduct an evidenti-ary hearing in an eminent domain action where defendants\u2019 answers were sufficient to raise an issue as to the land affected by the taking.\n5. Eminent Domain\u2014 refusal to hold evidentiary hearing\u2014 prejudice\nAn error in not holding an evidentiary hearing in an eminent domain action was not harmless where there was a possibility that defendants could show a unity of ownership and unity of use as to certain tracts.\nAppeal by defendants from orders entered 13 March 2006 by Judge Edwin G. Wilson, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 19 March 2007.\nWinston-Salem City Attorney Ron Seeber, by Assistant City Attorney Anthony J. Baker, for plaintiff-appellee.\nMax D. Ballinger for defendants-appellants." }, "file_name": "0033-01", "first_page_order": 65, "last_page_order": 76 }